Whether a decision to refund or refuse a national tax is an administrative disposition that is subject to an appeal litigation (negative) and a remedy procedure in case of refusal of refund (civil procedure)

The taxpayer's right to claim repayment of the amount paid in error, the amount paid in excess, or the amount paid in excess shall be determined at the time of payment or collection in cases of an erroneous amount paid in excess, when all or part of the tax obligation is extinguished by revocation or correction of a tax return, and in cases of an over-paid tax amount, when the requirements for refund under each tax law are satisfied, and it shall not be determined only by the decision of refund by the tax authority. Thus, even though the National Tax Basic Act or the individual tax law provides the procedures for the refund of the amount paid in error or over-paid tax amount under the above provisions of the Framework Act on National Taxes or the individual tax law, it is merely nothing more than the internal administrative procedures of the tax authority, and the decision of refund or refusal of refund pursuant to such refund procedures does not have any specific and direct influence on the existence or scope of the taxpayer's right to claim repayment, and thus,

Articles 51 and 52 of the Framework Act on National Taxes, Article 2 of the Administrative Litigation Act

Supreme Court Decision 88Nu6436 delivered on June 15, 1989 (Seoul District Court Decision 88Nu11605, 89Nu3649 delivered on February 13, 1990 (Dong)

Park Jong-chul et al.

Head of Seogsan Tax Office

Daegu High Court Decision 87Gu12 delivered on April 22, 1988

The judgment below is reversed and the lawsuit is dismissed.

The total costs of litigation shall be borne by the plaintiffs.

We examine ex officio the legitimacy of the instant lawsuit.

1. According to the reasoning of the judgment below, since the plaintiffs sold each of the above real estate owned by the plaintiffs to the non-party Housing and Commercial Bank and the non-party Housing and Commercial Bank completed the above above ground building within three years from the date of transfer of each of the above purchase land, the court below determined that the above application for refund of reduced or exempted tax amount was defective, and that the above application for refund of reduced or exempted tax amount constitutes grounds for reduction of 50 percent under Article 63 and Article 51 of the former Tax Reduction and Exemption Control Act (amended by Presidential Decree No. 12035, Dec. 31, 1986) and Article 51 of the same Enforcement Decree (amended by Presidential Decree No. 12035, Dec. 31, 1986) and the above application for refund was accepted by the plaintiffs. However, the defendant recognized that the transfer value of the land of this case was higher than the amount reported by the plaintiffs, and thus, the transfer value of the land of this case was refunded to the non-party Housing and Commercial Bank.

2. However, the amount of erroneous payment, excessive payment, or tax refund constitutes unjust enrichment received or held by the State without cause despite the existence of any tax liability from the beginning or the extinction thereof. The right to claim the return of such unjust profit is already determined at the time of payment or collection in the case of erroneous payment, and in the case of excessive payment, it is determined at the time of termination of all or part of the tax liability due to cancellation or correction of the return or disposition, and in the case of tax refund, it is determined at the time of fulfillment of the requirements for refund as prescribed by each individual tax law, and it is not finalized by the decision of refund by the tax authority.

Therefore, even though the above procedures for the refund of overpaid or erroneously paid amounts or refundable amounts are stipulated in the Framework Act on National Taxes and each individual tax law, they are merely internal administrative procedures for the refund of the amount of tax to be returned by the tax authorities, and the decision of refund or refusal of refund according to such refund procedures is not a disposition that has a specific and direct influence on the taxpayer's existence or scope of the right to claim the refund of the refund, and thus cannot be deemed a disposition subject to appeal litigation, and it is a party member's view that the taxpayer may demand the refund of the amount in a civil lawsuit in case where the taxpayer is unfairly denied the refund (see Supreme Court Decision 8Nu6436 delivered on June 15, 198,

In the instant case, even though the Defendant unfairly refused to refund part of the transferred tax amount to be refunded to the Plaintiffs under Article 63 of the former Regulation of Tax Reduction and Exemption Act, such refusal to refund cannot be deemed an administrative disposition subject to appeal litigation in light of the legal principles stated above, even though it is apparent in light of the above legal principles, the lower court’s order to revoke the transfer tax amount to be refunded cannot be maintained.

3. Therefore, the judgment of the court below is not reversed, and the case is sufficient to support the party members based on the facts established by the court below. Therefore, this lawsuit is dismissed, and the total costs of the lawsuit are assessed against the losing party and it is so decided as per Disposition by the assent of all participating Justices.

Justices Kim Sang-won (Presiding Justice) Lee Jong-won (Presiding Justice)